November 5, 1970 

Ronorable Burton S. Burks 

County Attorney, Hood County 

Granbury, Texas 76048 

Opinion NO. !I- 724 

Re : Refund of monies paid under 

Article 666-32 l/2 (b) Vernon's 

Penal Code, for calling of 

Dear Mr. Burks: local option election. 

You have requested an opinion from this office regarding whether monies paid under Article 666-32 l/2 (b), Vernon's 

Penal Code, by a private individual for calling a local option 

election,must be refunded to this individual when the county 

has not had a local option election for several years prior 

to the recent election in question. 

Article 666-32 l/2, Vernon's Penal Code is set out 

in full as follows: 

"Art. 666-32 l/2. Expense of holding elections 

(a) The expense of holding any local 

option election authorized by the Texas 

Liquor Control Act in any county, justice 

precinct or incorporated city or town shall 

be paid by the county, but the expense to 

the county shall be limited to the holding 

of one election in each of the above political subdivisions within a one-year period 

where the intent of the electron 1s to legalize the sale of alcoholic beverages, and 

the expense to the county shall be limited 

to the holding of one election in each of 

the aforesaid political subdivisions within 

a one-year period where the intent of the 

electron is to gohibit the sale of alcoholic beverages. All other local option 

electlons, excepting the aforementioned 

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Honorable Burton S. Burks, Page 2 (M-724) 

as prescribed in Subsection; (b) of this 

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section as follows: 

(b) When the application for an 

election in a county, justice precinct 

or incorporated city or town is presented, 

the county clerk at the time and before 

the issuance of any petition for a local 

option election s!lall require a deposit 

in the form of a cashier's check in the 

aggregate amount of twenty-five cents 

per voter listed on the current list of 

registered voters as residing in the 

county, justice precinct or incorporated 

city or town for which the election is 

sought. The money so received shall be 

deposited in the county's general fund, 

and no refund shall be made to the applicants regardless of whether the petition 

is returned to the county clerk or t!lc 

election is ordered. When there is 

presented to the county clerk an application which must be accompanied by a --- .._- -,__.-, 

deposit, the county clerk shall not 

Esza' petition to the applicants unless and until the deposit is made, and 

a county clerk who issues a petition 

upon sucll an application without first 

receiving the deposit is guilty of a 

misdemeanor and shall be fined not less 

than two hundred dollars nor more than 

five hundred dollars, or imprisoned in 

the county jail for not more than 30 

days, or both fined and imprisoned." 

(Emphasis added.) 

The 60th Legislature passed and the Governor approved 

Senate Bill No. 58 (Acts 60th Leg., R.S. 1967, Ch. 723, p. 1858), 

which was entitled Election Code Revision; and in this lencthy 

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Honorable Burton S. Burks, Page 3 (E-1-734) 

bill, as Section 12 thereof, the Texas Liquor Control Act was 

amended by adding a new section codified as Article 666-32 l/2, 

Vernon's Penal Code, set out above. The caption of Senate 

Bill No. 58 refers to this section in the following language: 

"* * * . . .and adding Section 32 l/2, 

Article I, Texas Liquor Control Act, 

relating to payment for the expense of 

holding such elections and providing 

a penalty for issuance of a petition 

for an election under certain circumstances: * * * *n 

The cardinal rules of statutory construction applicable here require that when a statute is susceptible of more 

than one construction it will be interpreted as to best secure 

the benefit intended: will best effect the leqislative intent 

and so that it will be constitutional and valid. Newsom v. 

State, 372 SW 2d 681 (Tex. Crim. 1963). Once the legislative 

intent is ascertained, it should be given effect, even though 

the literal meaning of the words used therein is not followed. 

Wood v. State, 133 Tex. 110, 126 SW 2d 4 (1939), 121 ALR 931. 

If Article 666-32 l/2 (b), Vernon's Penal Code, were 

to be interpreted as compelling a deposit to be made with the 

county clerk with every application for a local option election, 

regardless of whether such a local option election has been 

held in the immediate prior one-year period, such an interpretation would defeat the exception underlined in paragraph (a) 

of the Act above, which places the expense of the local option 

election on the county if no such election had occurred in the 

prior one-year period. This construction would in effect change 

this statute into an "application fee" statute, and because of 

the failure to adequately describe it as such in the caption 

of the legislative act in which it was included, that construction would render it invalid, Art. III, Sec. 35, Constitution 

of Texas. 

The more appropriate and proper construction of this 

statute is that the underlined portions of paragraph (a) of 

the statute, as set out above, clearly mean that if there has 

been no local option election in the preceeding one-year period, 

the expense of the election is that of the county and only if 

there has been such an election in the prior one-year period, 

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Honorable Burton S. Burks, Page 4 (M-724) 

in that political subdivision, then the paragraph (b) requirement for a deposit becomes mandatory. The clause underlined 

in paragraph (b) above recognizes that there are applications 

which must be accompanied by a deposit and by implication 

recognizes that there are applications which do not require 

such deposits. 

Based on the foregoing analysis, it is our opinion 

that the private individual calling for a local option election 

in a political subdivision that has not had such an election in 

the preceeding one-year period should not have been required 

to make a deposit with the county clerk and that such deposit 

should be refunded by the county clerk to the payor. 

s rJ I? PI A R Y 

------.-,-- 

A deposit made with the county clerk 

pursuant to Article 666-32 l/2 (h), Vernon's 

Penal Code, with an application for a "local 

option election" in a county which has not 

had such an election in the preceedinq oneyear period, should be refunded to the 

depositor. '; 

Very truly yours, 

Prepared by Robert Giddings 

Assistant Attorney General 

APPROVED 

OPINION COMXTTEC 

Kerns Taylor, Chairman 

W. E. Allen, Co-Chairman 

Jay Floyd 

John Reeves 

Rex White 

Fisher Tyler 

MEADE F. GRIFFIN 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

NOLA WHITE 

First Assistant 

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